Seòmar agus comataidhean

I will address my amendments before I turn to the other amendments in the group. Amendments 37 and 38 alter the death certificate requirements in section 17 to require the death certificate to record—secondary to the primary cause of death, as covered by section 17(2)—that an approved substance was self-administered under the bill’s provisions. Amendment 36 is a consequential drafting amendment.

The bill requires that the death certificate for a terminally ill adult who has had an assisted death under the bill’s provisions must record the terminal illness as the primary cause of death. The explanatory notes add that it is expected that the substance that the person used would also be recorded on the death certificate as a secondary or additional cause. My policy has always been that both the terminal illness and the substance that is used should be recorded on the death certificate. I note that the committee’s stage 1 report concluded that

“both the illness, disease or condition which led to an individual requesting assistance to end their life, and the approved substance provided to enable them to do so”

should be

“detailed on the death certificate.”

My amendments will ensure that that is the case.

After further consideration following discussions with the chief medical officer and others, I have lodged my amendments to ensure that my policy is reflected in the bill and that death certificates capture both the underlying terminal illness as the cause of death and the fact that an approved substance was used. That will ensure appropriate transparency.

I note the Scottish Government’s confirmation that that will require consultation with Public Health Scotland, National Records of Scotland, Healthcare Improvement Scotland and health and social care services to ensure that deaths continue to be recorded in an accurate, consistent and helpful manner, that new processes and investment will be needed to support that level of data collection, development and reporting, and that alignment with other UK jurisdictions will also need to be considered. I welcome that helpful clarification and am keen to work with the Government if further work is required ahead of stage 3.

Pam Duncan-Glancy’s amendments 246 and 247 would change the death certification provision so that the approved substance used is listed as the primary cause of death and the terminal illness is recorded as an underlying condition. I certainly acknowledge the different perspectives on the issue, and although I remain of the view that the right and most transparent thing to do is to record the primary cause of death as the terminal illness, with the substance also being noted on the death certificate, I want to hear what Pam Duncan-Glancy and other members on the committee have to say when speaking to her amendments before deciding whether to press my amendments.

I move amendment 36.

I thank Miles Briggs for initiating this debate. Listening to him reminded me of some of the exchanges that we had way back this morning, when I think it was Bob Doris who was playing devil’s advocate for me and for Sue Webber—which I thought was a heroic act on his part. Miles Briggs talked about the need for a framework but also the need to protect discretion in medical judgment. In all this, that is the balance that we need to strike.

I thank Sue Webber and Pam Duncan-Glancy for speaking to their amendments. I turn to Pam Duncan-Glancy’s amendment 252, which seeks to make it an offence to

“publish, distribute or display any advertisement, notice or material which ... promotes ... encourages, or ... solicits ... the provision of assistance to a terminally ill adult to end that adult’s life.”

The amendment also lists examples of advertising, including

“printed material ... electronic communications ... social media posts ... websites”

and

“any other form of public or private communication intended to reach more than one person.”

Pam Duncan-Glancy has explained the rationale behind that very well. The amendment exempts communication that is solely aimed at providing information about the act and provides for a maximum penalty of a fine at level 5 on the scale or of two years in prison.

I am aware that the committee considered the legislative consent motion that Joe FitzPatrick referred to. That arose due to an agreed amendment to the Westminster bill that extended to Scotland a duty on the secretary of state to make regulations prohibiting the advertising of a voluntary assisted dying service. Unlike the provision in the Westminster bill, which limits the advertising offence to assisted dying services that are provided in accordance with the act, Pam Duncan-Glancy’s amendment seems to relate slightly more broadly to advertising the provision of assistance to a terminally ill adult in general. I wonder about the potential crossover with the Westminster bill and any uncertainty that that might create. I also note the Scottish Government’s comments on some of the technical aspects of the amendment.

That said, I am very supportive of the principle behind the amendment, which seems to seek to achieve—much the same as in the Westminster bill—a change that I very much welcome. If Pam Duncan-Glancy’s intent is to create an equivalent belt-and-braces provision in this bill to what is provided in the Westminster bill, I would certainly be happy to support those endeavours ahead of stage 3. However, there are issues that need to be addressed in the amendment for that to happen.

With regard to Sue Webber’s amendments 253 and 276, the offence appears at odds with the requirement under section 7 of the bill for assessing doctors to discuss the nature of the substance with the person requesting an assisted death. That opens up the potential for creating uncertainties for assessing doctors. I note the Scottish Government’s concern that

“labelling the substance could be interpreted as committing an offence. It is also unclear how someone’s access to information could be time limited.”

I also note that amendment 253, through subsection (1), does not appear to be limited solely to publishing. I therefore encourage Sue Webber not to move amendments 253 and 276, and, if she does, I ask committee members not to support them.

That is helpful in exemplifying what the member is seeking to achieve, which is to go beyond what has already been agreed to in the Westminster bill. However, I must say—I feel this acutely—that a challenge arises from that fact that legislation on the same area is passing through both Parliaments simultaneously.

I would have concerns about extending the definition more broadly. There are concerns about ensuring that people have access to the information that they need to make an informed decision. The evidence from other jurisdictions suggests that, for example, as with many other aspects of health and care, those in lower socioeconomic demographics often find themselves less able to access services because of that lack of information.

I get the sensitivities around that, and I absolutely support the change that was made to the Westminster bill. I would support applying that change through the provisions of my bill. However, I would be wary about extending that further because, irrespective of where you stand on whether there should be a change in the law, there could be problematic consequences in doing so.

We cannot give you a grouping all to yourself if you are not going to play ball, Mr Johnson.

I thank Daniel Johnson for lodging the amendments and for speaking to them and explaining their rationale, which I entirely understand. I accept that there would be a degree of arbitrariness with any timeframe that we set for the period of reflection.

On Mr Johnson’s point about people whose prognosis is that death might be more imminent, there is a provision in the bill that will allow anybody who is assessed as being likely to die within 14 days to have a reflection period of 48 hours, which is not much but should allow sufficient time for at least some reflection. That will also allow the process, with all the safeguards, to run its course.

I believe that the period of 14 days strikes the right balance between ensuring that a terminally ill adult has time to reflect on their decision at the end of life and ensuring that they are not subject to prolonged suffering, having taken that decision. In the stage 1 evidence that the committee received, including from the voluntary assisted dying review board in Victoria, Australia, it was noted that many who seek assisted death may not live for 14 days after having signed the declaration.

I note that amendments 7 and 8 are consequential on amendment 9. I understand the rationale for Daniel Johnson lodging the amendments. He is almost certainly correct that we will return to the issue at stage 3, but it will be difficult for the committee or Parliament to come up with a timeframe that is any less arbitrary. We can draw confidence from what we see in other jurisdictions, which is that, by and large, 14 days seems to be an appropriate timeframe to set.

I again thank Daniel Johnson for lodging the amendments. I will leave my remarks there.

I thank Mr Balfour for setting out the rationale for his position. I also thank the committee for the extensive scrutiny that it has undertaken throughout stage 1 and stage 2.

The stage 1 scrutiny included evidence on the bill’s protections for vulnerable groups in the context of the right to life under the European convention on human rights and the rights in the UN Convention on the Rights of People with Disabilities, including article 12.

At stage 2, close to 300 amendments have been lodged, aimed at further strengthening the carefully considered safeguards in the bill. In the interest of time, I will not reprise those.

Stage 2 amendments relating to age, capacity, detection of coercion and palliative care have all already been debated, and many are still to be considered. An amendment raising the age limit for requesting an assisted death from 16 to 18 has already been agreed to. So, too, was my amendment to include a for-the-avoidance-of-doubt provision that no one can be considered as meeting the terminally ill definition only because they have a disability or a mental disorder.

Turning to the question of coercion, I point the committee to the part of the policy memorandum relating to equalities and the human rights issue. Paragraph 99 states:

“There have been various cases brought before the European Court of Human Rights ... arguing that the prohibition or lack of availability of assisted dying is a breach of the ECHR. Whilst these cases have not been upheld, the”

Court

“has not stated that assisted dying is either compatible or incompatible with the ECHR. The approach of the”

Court

“to date has been to recognise that countries/jurisdictions are better placed than the Court to decide on nationally sensitive issues (this is known as the ‘margin of appreciation’).”

I also remind members that I completed an equalities impact assessment for the bill, which was sent to the committee and is available on the bill’s web page.

Furthermore, extensive written and oral evidence was received at stage 1 on issues relating to people with a disability, which is reflected in the committee’s stage 1 report. I have also previously cited research by Dr Ben Colburn and others that concludes:

“1. People with disabilities are not generally opposed to assisted dying laws.

2. Assisted dying laws do not harm people with disabilities.

3. Assisted dying laws do not show disrespect for people with disabilities.

4. Assisted dying laws don’t damage healthcare for people with disabilities.”

On the issue of coercion that Mr Balfour raises, I refer members to my response to the chief executive of the Scottish Partnership for Palliative Care, which was copied to MSPs last week—again, that is a matter of record. It makes it clear that my intention and, indeed, understanding is that doctors will use the full extent of the General Medical Council guidance and relevant training and experience when making assessments. I therefore believe that the bill is consistent with other relevant legislation, and with professional practice. It ensures that safeguards remain robust, clear and enforceable, while allowing professional guidance to continue to support clinicians in identifying more subtle or indirect influences in practice.

Amendments to further refine the definition of “coercion” in the bill have been and will be debated and decided on by the committee. I believe, however, that the terms “coercion” and “pressure” are well understood. Indeed, I note that the Scottish Government commented that providing a definition of coercion that brings in broader internalised pressures could have the opposite effect and create uncertainty.

I endorse the role of the UN Committee on the Rights of Persons with Disabilities in monitoring the practical application of national legislation in the context of the convention. However, Mr Balfour’s proposal that a final vote at stage 3 not take place until the UN committee has certified that the bill aligns with the convention would not only interfere with decisions taken by this committee at stage 2 but pre-empt the legitimate scrutiny process of this Parliament, the remainder of stage 2 and the amending part of stage 3, which is still to come. It would not be appropriate to seek to interfere with the legitimate processes of this Parliament, including the lengthy and thorough scrutiny process at stage 1, which resulted in the Parliament agreeing to the general principles of the bill. Mr Balfour would still be free to engage with the UN committee, but I believe that this committee, Parliament and the public can have confidence in the robust process of scrutiny being applied to the bill.

The disadvantage of speaking to my amendment, and the others, at this point is that I am doing so before I have had the opportunity to hear Mr Doris set out the rationale for his own amendment.

I have misgivings about the way in which Mr Doris’s amendment 125 is phrased, but I do recognise the point that he makes—and, indeed, which has been made in the range of amendments lodged in this area. The bill would benefit from further clarification in relation to those points. I am not sure that that clarification has been captured in any of the amendments that have been lodged, albeit that they have led to this discussion. I hope that we can address those concerns ahead of stage 3.

On Stuart McMillan’s amendment 187, the bill provides for Scottish ministers to regulate for the use of an approved substance and requires ministers to consult ahead of any regulations being laid. I fully expect such consultation to include the chief medical officer. The regulating power would also allow Scottish ministers, if appropriate, to regulate to remove a substance from the approved list. Therefore, I do not believe that amendment 187 is needed. I would also acknowledge the Government’s view that it is normally for the Medicines and Healthcare products Regulatory Agency

“to advise on the suitability, safety, side effects, quality, efficacy, ... dose, full product life cycle, and post licensing review ... of drugs licensed for a purpose.”

Finally, in relation to Patrick Harvie’s amendments 127 and 137 on safe access zones, I am conscious that I have not heard him speak to his amendments, but I do understand his rationale for lodging them, not least in light of legislation that this Parliament has recently passed. The purpose of that legislation—that is, the Abortion Services (Safe Access Zones) (Scotland) Act 2024—is to designate zones to protect patients and staff from activities that cause distress and intimidation. Given the sensitivities surrounding the debate on assisted dying, I understand the need to ensure that those who seek assistance and those who provide it are not subject to harassment and intimidation.

The amendments would allow, but not require, ministers to regulate for

“safe access zones for premises in which assistance may be provided”.

That is important, because the issue will need careful reflection and consideration, given that assistance might be provided in, for example, a person’s home. That alone would make requiring such zones to be established problematic. The Scottish Government appears to agree with that point, further noting that

“There are existing laws in place which would provide some protection”.

I do not believe that the provisions in amendments 127 and 137 are necessary, although I would observe that the proposed five-year review of the act would allow the issue to be revisited at a later date and with a clearer understanding of the experience in practice. It is worth acknowledging that such issues do not seem to be a feature in other jurisdictions where assisted dying laws are in place. However, as I have said, I am conscious that I am commenting on amendments that I have not heard the member speak to, and I will listen with interest to what he has to say.

Bob Doris is right that this is a very sensitive area. There is an understandable desire for as much clarity as possible. Does he accept that, at present, the guidance that is in place to medical professionals in relation to such situations is about making the patient as comfortable as possible? He is certainly right that the application of any additional substance is not what would be expected. However, the provisions in the guidance that exists at the moment would cover the situation adequately. There is a risk in putting that sort of detail in the bill—that has not been done in any other instance.

I remind Mr Doris and the committee that section 7(1)(a) of the bill would require the registered medical practitioner to assess, among other things,

“(i) the person’s diagnosis and prognosis,

(ii) any treatment available and the likely impact of it on the person’s terminal illness,

(iii) any palliative or other care available,

(iv) the nature of the substance that might be provided to assist the person to end their own life”

and, in section 7(1)(b), to inform the person

“(i) of the further steps that must be taken before the lawful provision of assistance”.

There is a lot of detail there already. I appreciate that the member and others might wish to see more, but those provisions are in the bill as introduced.

I thank all colleagues for their contributions. To touch on the points that Brian Whittle has just made, I certainly understand his intent. However, for reasons that other colleagues have flagged up, I think that, as currently drafted, amendments 155 and 196 are perhaps problematic. I reiterate the offer to work with Brian Whittle ahead of stage 3, but I also point to the General Medical Council guidance, which already sets out strict provisions in relation to undue influence of one practitioner over another. It is an area on which I am happy to work with Mr Whittle ahead of stage 3.

The exchanges so far this morning have underscored the crucial importance of training. I note, with perhaps a little regret, that I did not foresee that and put it in the bill in the first instance. The debate has highlighted the importance of such training to specific groups, whether that be people in the disability community, as Pam Duncan-Glancy referred to, or people under 25, as Daniel Johnson referred to on behalf of Jackie Baillie, as well as specific training and understanding in areas such as palliative care and coercive controlling behaviour.

In a sense, the Parliament has had an opportunity to set out its expectations on what the training would involve. For the reasons that Sandesh Gulhane underlined, there are risks in putting such provisions in the bill instead of allowing them to rest in secondary legislation or, more likely, in guidance, which is where such provisions sit at the moment.